In today's New York Times, Linda Greenhouse reports on an interview with Justice Breyer about his early years as a Supreme Court Justice:

"I was frightened to death for the first three years," he said in a recent conversation. . . . "I was afraid I might inadvertently write something harmful," Justice Breyer said. "People read every word. Everything you do is important. There is a seriousness to every word, and you really can't go back. Precedent doesn't absolutely limit you. In almost every case, you're in a wide-open area. The breadth of that opening, getting up to speed on each case, constitutional law as a steady diet, the importance to the profession. ..." His voice trailed off, and he shook his head. "My goodness!" he exclaimed.

"Precedent doesn't absolutely limit you. In almost every case, you're in a wide-open area. The breadth of that opening,..."

It is this sort of "crap-shoot jurisprudence" that keeps me up at night. That and the normal neuroses suffered by the average practioner, but I digress...if not precedent, if not original meaning, if not legislative history then what? Does Justice Breyer of Delphi have the right answer?

Houston Lawyer, demonstrating how vicious you can be just isn't doing much for you, the legal profession, or the city of Houston.

I frequently disagree with Justice Scalia's opinions, but I respect that he is, by his own lights, trying to do the right thing. Is it really so hard to imagine that Justice Breyer is doing the same thing? Or is anyone who holds different opinions from yours not only mistaken, but a fool (or an "idiot," as Scalia put it the other day)?

In defense of Justice Breyer, the reason why so many of the cases before SCOTUS are a "wide open area" is precisely because it grants cert in the "wide open area" cases and turned down cert in the other 99% of applications. He's not saying than any randomly selected group of 1000 lawsuits would yield 1000 "wide open area" cases. It's SCOTUS's job to identify cases where the law is wide open, and resolve them.

Everyone has great reverence for precedents that they agree with, but not so much for other precedents. How many readers of this blog would have minded if Breyer had used Kelo as an occasion to revisit the 50 years of solid precedent that led inexorably to the majority holding?

An important qualifier appears in Breyer's statement that precedent doesn't absolutely limit you. Of course the Court will follow precedent more often than not. But just knowing that you have the power to overturn the applicable precedent, that it is an option you must consider, makes the role of a Supreme Court Justice considerably more complicated than that of a lower court judge.

With great power comes great responsibility. I'm more inclined to respect a Justice who acknowledges the extent of the great power in his hands than one who pretends every case has a straightforward answer and he is just performing a ministerial task.

It seems like you and others have an axe to grind with a particular brand of jurisprudence, but it's not at all clear to me why you think he is espousing, what did you call it,

Wow, I have unlimited authority to re-write the whole Western canon

Can you please reconcile what you attribute to him with what he said? And don't resort to case law, try to stick with what he said, since that was the focus of your previous post. I, like some other people here, don't understand your viciousness on this particular issue, other than what I suspect is an ideological disagreement with the outcomes he reaches rather than a real objection to his methodology.

What do you mean? Just because Thomas wants to resuscitate a one hundread and thirty years dead privileges and immunities doctrine and scale the commerce clause back 70 years doesn't necessarily mean that he has to adhere to precedent to do it. (yes that was sarcasm, and not directed at Wrigley).

I'd also point out that every time a justice casts a vote against the core holding in Roe, they are quite flagrantly disregarding precedent.

Kovarsky, you are underplaying your hand if you don't bring up Thomas' statement that he would be willing to reconsider Calder v. Bull, which is over 200 years old.

No one believes that precedent is unalterable, so we can eliminate that strawman right there, but you have to be deeply partisan to believe that when "liberal" judges overturn precedent they are overstepping the judicial role, but when "conservative" justices overturn precedent they are just correctly returning things to their original understanding.

It always amuses me when dudes like Houston Lawyer make out one of the "fabulous four" on the left of the current Court to be wild-eyed judicial revolutionaries.

Any one of the "fabulous four" would have been a right-winger on the Warren Court, and a centrist on the Burger Court. It's a sign of the impact that Republican Presidents have made on the Court that someone like Stephen Breyer could be considered a shameless judicial activitst by the likes of Houston Lawyer.

Mr D. You're right this man (Breyer) is a danger and the minute he realized that he wasn't up to the job, he should have resigned.

However, I think the reason he was so nervous is that he was afraid to deviate a jot from the received wisdom of the left which may not have always been obvious to him. Lucky he had Justice Ginsburg at his side to put his feet on the right, that is to say, left path.

As for Justice Scalia calling someone an idiot. I don't know if that's true or not, but it seems unlikely that someone with his intellect would resort to name calling.

As I see it, the Justices on today's "left" have a broader view of gay rights, affirmative action, and abortion than the liberal Justices of the Warren Court. The "right wingers" of the Warren Court opposed reapportionment and the incorporation of the Bill of Rights as applied to the states. Why do you think today's liberals would be considered "right wingers" on the Warren Court?

Or is your view that believing in incremental movement to the left is "right wing"?

- In 1974, the U.S. Supreme Court declared capital punishment, as it was then practiced in the United States, unconstitutional. The court later allowed states to amend their laws and reinstate capital punishment, but three justices--William Brennan, Thurgood Marshall, and, later in his career, Harry Blackmun--insisted that capital punishment was unconstitutional in all circumstances. Stevens and Souter have consistently rejected that view.

- In 1973, four justices--not quite enough to carry the court--concluded that it was unconstitutional to fund public education through local property taxes when the result was that rich school districts spent far more, per pupil, than poor school districts. Neither Stevens nor Souter has taken that position.

- Throughout the 1970s and 1980s, the court walked a fine line on the question of whether public funds could be spent on religious schools, allowing certain forms of aid (such as textbooks) but not others (such as remedial instruction). When Thomas and Kennedy joined the court, the pendulum swung sharply in the direction of allowing--sometimes even requiring--more state aid to religious schools. Stevens and Souter adhered to the earlier cases. But now, instead of being part of a moderate majority, they have become "liberal" dissenters.

- On abortion, the issue that has attracted the most attention, Stevens and Souter--the supposed liberals--have always been significantly more conservative than Brennan, Marshall and Blackmun were. A few years after Roe vs. Wade, the court ruled that the government could refuse to allow Medicaid funds to be used for abortions. Brennan, Marshall and Blackmun bitterly dissented. Stevens did not join them; characteristically, he took an independent, moderately conservative position, saying that Medicaid funds could be denied for most abortions but not for medically necessary abortions.

Souter has never questioned the holding that Medicaid funds could be denied for all abortions. Kennedy and O'Connor have actually voted to expand these rulings, allowing a state to prevent public hospitals and their employees from being used for abortions even when the patient was willing to pay the entire cost. They also have voted to uphold many other restrictions on abortion rights--parental notification requirements, waiting periods, mandatory "education" sessions for women seeking abortions, reporting and record-keeping requirements.

Souter in particular along with Kennedy and O'Connor have been pilloried by many abortion opponents because they did not vote to overturn Roe vs. Wade, as if that means they must be closet liberals. But Roe vs. Wade was, as I said, the product of the Nixon Court. Many conservatives agreed with it at the time, and since. And Kennedy and O'Connor, in particular, have allowed the right to an abortion to be so hedged around by restrictions that, for many American women, obtaining an abortion remains extremely difficult today.

Justice Breyer's quote reminds me of the first phrase traditionally taught to Jewish children: "The beginning of wisdom is the fear of G-d" (in Hebrew, reishit chochma yirat hashem). I am comforted to know that Justice Breyer has such reverential awe. I would be afraid of a justice who does not have such humility and respect for the work.

"...when "liberal" judges overturn precedent they are overstepping the judicial role, but when "conservative" justices overturn precedent they are just correctly returning things to their original understanding."

Good formulation, Steve. Actually, that sounds like pretty much exactly what is being said, very often. Usually with a much more snide flourish, though, such as from Houston Lawyer and tefta, above.

tefta, if Scalia's calling someone an "idiot" seems unlikely to you given his intellect, do you wish to revise your opinion of Scalia's intelligence now that you know he said it? :)

Frankly, as a long-time follower of Breyer's writings and speeches, I find him to be a remarkably brilliant man with a sincere heart for the Constitution and the Law.

He has a purpose/consequence emphasis in his interpretation, which I appreciate many folks disagree with. But when there's a kind of partisan vitriol hurled at him, though, it seems to be very, very petty and biased against the man for reasons that have little to do with jurisprudence.

> Medicaid funds could be denied for most abortions but not for medically necessary abortions.

Since "medically necessary" means "An MD will say it's for the woman's health" and one can find MDs who will say that in almost any circumstance ("she'd feel better" = mental health), most abortions are "medically necessary".

> for many American women, obtaining an abortion remains extremely difficult today.

Apart from the fact that there isn't an MD willing to perform the procedure at every street corner, what's the difficulty? (Yes, I'm aware that there are states where only one of the three hospitals will perform abortions. There are consequences to living in places where it is extremely difficult to have surgery of any kind.)

An important qualifier appears in Breyer's statement that precedent doesn't absolutely limit you. Of course the Court will follow precedent more often than not. But just knowing that you have the power to overturn the applicable precedent, that it is an option you must consider, makes the role of a Supreme Court Justice considerably more complicated than that of a lower court judge.

What's striking about the quote is that while he acknowledges that precedent is a limitation, though not an absolute one, he doesn't even address the constitution as forming any sort of limitation. Everything is "wide open."

Good for Justice Breyer. Supreme Court Justices have an enormous amount of power and relatively little ability to correct their mistakes. A Justice who isn't worried about the consequences of an erroneous decision (or even an erroneous bite of reasoning in a generally correct decision) is a dangerous person to have on the Court.

While Breyer, or the other three left leaning members of the court, would not be my favorites, I find the need to try to demean unnecessary and unproductive. I am sure all members of the court try to come to the best decisions, in their own mind. We have the same elements in play that fuel the critics of Clinton on the right and Bush on the left.

I found it interesting that one invoked 50 years of solid precedent and another the past 70 years of the commerce clause rulings. Those two instances were the result of marked shifts from preceding jurisprudence. Both came about because of a shift in societal attitudes, the former fueled by the Great Depression.

From a historical perspective, judicial thought and interpretation started a leftward tack with the 16th Amendment and concurrent commerce clause rulings. The Great Depression created a focus on social issues and the New Deal required a radical shift to the left in judicial thought to make it constitutional. FDR knew this, thus his threat to try to stack the court, eventually, by the time of his death, 8 of the 9 SCOTUS justices were FDR nominees, his legacy on jurisprudence was firmly ensconced. The judicial path has been on a leftward tack ever since then.

That leftward tack began to slow with Reagan, as he nominated more conservative judges to the lower courts. Because of the lifetime status of judges, their rulings do not shift with that of the electorate, instead, they provide a stabilizing effect that tends to prevent radical shifts in jurisprudence in favor of slower moderate shifts. The judicial path for the future is at a fork in the road, it is the next opening, and who gets to nominate, that will have a profound effect on the judicial path taken. Should a republican win in '08 or should Stevens or Ginsburg, the two most likely to leave because of age or health, respectively, leave the court in the next two and one half years, the court will steer its direction down the path to the right, as Bush or a republican would nominate another conservative. Should a democrat win in '08, it will delay any path choice as the current balance of 4 left and 4 right will be maintained, with Kennedy the swing vote.

Those on the left will decry such a shift, claiming the new path of judicial philosophy is illegitimate. Yet, couldn't the same be said of the shift that occurred under FDR ? So what makes the precedence of rulings since FDR any more special or 'super', than those that preceded them ? The answer is nothing, they overturned precedence to steer the law to the left. That does not mean all SCOTUS decisions in that period were bad or good, who would argue that overturning Plessy with Brown was a bad thing ? It is the social rulings of the court that were most contentious. The same will happen if the court tacks to the right. And just as many on the right decried social rulings that favored the left, the left will do the same for social rulings that represent the rights viewpoint.

This movement will be painted by some as moving backwards, but the real truth is that it is a societal correction due to the pendulum effect that occurs in a free society. A pendulum cannot maintain momentum in one direction, the societal center of gravity slows, stops and then reverses momentum when it swings too far one way. I think that societal shift is part of the polarization that exists in this country, because it represents change, and human nature is to fight change.

I further proffer, that we are going through a monumental shift, since FDR, the left has controlled the media, the judiciary, the government, academia and therefore was able to write history from their perspective, influence thought and shape policy across the board. The left has lost its dominant control of government, the 'old media' has seen its influence and credibility decline markedly, the judiciary has started its pendulum swing back from the left (where it is on that arc is open to debate) and academia is finding their authority questioned, but still remains that last bastion of solid left influence.

Whether this is good or bad depends on your ideological/personal perspective, the reality is that this is an inevitable occurence of a society in motion. It is not something to be feared, but a natural occurence. Should that pendulum motion stop is when we should be concerned, because that would mean society has become stagnant, and that is the beginning of the downfall of any free society.

What's striking about the quote is that while he acknowledges that precedent is a limitation, though not an absolute one, he doesn't even address the constitution as forming any sort of limitation. Everything is "wide open."

D. Nieporent: What's striking about the quote is that while he acknowledges that precedent is a limitation, though not an absolute one, he doesn't even address the constitution as forming any sort of limitation.

It's a NEWSPAPER QUOTE, for heaven's sakes, not a treatise, or even a press release. God knows what he said about the Constitution that Greenhouse simply cut.

And as anyone who honestly thinks about the matter will acknowledge, the Constitution is a remarkably open-ended document in most respects. It doesn't interpret itself.

What's striking about the quote is that while he acknowledges that precedent is a limitation, though not an absolute one, he doesn't even address the constitution as forming any sort of limitation. Everything is "wide open."

Yes, that's the problem I have with it as well. Basically, the Constitution means what our nine rulers in black robes SAY it means.

Exhibit A: Name of the case escapes me, but it's the law school one where they used race (in a non-quota way) as part of the entrance stuff. The Constitution says the government may not discriminate based on race. The SCOTUS says that includes state schools, so it appliees to the law school in question. They ALSO say that the law school in question may continue to do so.

"May not" = "may"

It doesn't get any more extreme than that. Kelo is pretty close to the same thing.

And as anyone who honestly thinks about the matter will acknowledge, the Constitution is a remarkably open-ended document in most respects. It doesn't interpret itself.

I've thought a lot about the matter, and I think that position is completely ludicrous.

What is the difference between having it "interpreted" for me by the nine in black and being RULED by the nine in black? Nothing. If it means what they say it means, what they say is law, plain and simple. The actual text is no longer relevant.

The words have inherent meaning, and the document itself, barring some words falling out of favor and thus not being well known anymore, is quite easy to read and understand.

And yet, several recent SCOTUS decisions fly squarely in the face of plain laguage in the Constitution.

If the words have no inherent meaning, I hereby "interpret" them to mean that *I AM* the SCOTUS, and I will rule as I see fit. Oh, and I'm the President, too.

Another example unique to Justice Breyer is his decision in Van Orden v. Perry to cross the strict church-state dividing line and join a 5-4 majority on that issue. I can't imagine Marshall or Brennan doing that.

In Pierce v. Society of Sisters (or something like that), the 1920's Supreme Court ruled invalid Oregon's Compulsory School Act - a KKK-inspired attempt to shut down Catholic parochial schools, as a violation of the substantive due process component of the 14th amendment. The 14th amendment says nothing about substantive due process, nor does the Constitution grant any explicit right to attend a private school. Would you disagree with the Pierce decision, written by that notorious judicial revolutionary Justice McReynolds?

In Moore v. East Cleveland, the 1970's Supreme Court struck down a municipal ordinance which, by defining a family narrowly, prohibited a grandson from living in the same house with his grandmother. There's nothing in the Constitution granting this right explicitly. Do you think this decision was wrong?

What's striking about the quote is that while he acknowledges that precedent is a limitation, though not an absolute one, he doesn't even address the constitution as forming any sort of limitation. Everything is "wide open."

You know, in that quote Breyer doesn't even address his love for his Mother, either.

What's striking about the quote is that while he acknowledges that precedent is a limitation, though not an absolute one, he doesn't even address the constitution as forming any sort of limitation. Everything is "wide open."

Breyer also fails to address the law of gravity as forming any sort of limitation. No doubt that enrobed radical plans to have us floating helplessly through the air by the end of the current term with one of his insane decisions!

Adam B made a nice start, and I honestly don't believe I'm getting goaded into this argument that would not have been worthy of my 2L Con Law class, but I've had a few glasses of wine, so here goes . . .

The words have inherent meaning, and the document itself, barring some words falling out of favor and thus not being well known anymore, is quite easy to read and understand.

How about the equal protection clause? Does that require equal income? How about equal education? Is progressive income taxation unconstitutional? Is a flat tax unconstitutional as inherently regressive? Are libel and slander laws unconstitutional? Does the right to counsel attach at arrest? Arraignment? Trial? Are jury trials required for all causes of action? Is torture cruel and unusual? What rights are reserved to the states? The people? What process is "due"? Does that vary under the circumstances? Where do I find the non-delegation doctrine? Does the 11th amendment bar suits by citizens against their OWN states? What count as "cases" or "controversies?" Does the full faith and credit clause require Iowa to honor the marrraiges being performed in Massachutts? What are the priviliges and immunities of a citizen of any given state? Can Congress constitutionally fund the Air Force? If the federal government has to gaurantee that each state provides a "republican form of government," are popular referenda acceptable? What things constitute a republican form of government? Can the President fire his cabinet without Senate approval? Where does the Constitution explain that? What about withdrawing from treaties? Are Congressional-executive agreements with foreign nations acceptable? What about sole executive agreements? I forget which Article talks about those.

Since the document is "quite easy to read and understand," please explain the answers to those questions in a few short sentences.

The claim that the Constitution only has one plausible interpretation simply ignores history. The Framers understood that they had to craft a document which would be widely acceptable, and thus they deliberately employed broad language which each listener could imagine to mean whatever he wanted it to mean. Leaving aside the advisability of letting ourselves be governed by whatever the common understanding was in 1787, the fact is that there was no such thing as a common understanding.